The debate about employees’ freedom of speech on social media made headlines last month when the Federal Circuit Court refused to make orders to prevent the dismissal of a public servant who anonymously made a number of critical comments on Twitter about the Government and its policies.
In ruling that there was no unfettered freedom of political expression, Justice Neville made it clear to public sector workers across Australia that anonymous venting on social media about the Government’s policies would be a breach of the APS Code of Conduct and departmental policies on social media use.
More broadly, this case reinforces for all workers that the divide between private and public life is unclear and will likely not become clearer in the short-term as new online technologies are introduced. As for employers implementing or reviewing their social media policies, they ought to turn their minds to just how far they need to intrude on workers’ privacy in order to protect their business interests.
The Applicant, Ms Banerji, was a ‘public affairs officer’ in the Department of Immigration and Citizenship when a complaint was made about her inappropriate use of social media and her being employed in outside employment without permission.
The Department investigated the complaint and found that, under the anonymous ‘Twitter handle’ of “@LALegale”, Ms Banerji had breached the Department’s Guidelines on Use of Social Media by DIAC Employees and the APS Code of Conduct by “tweeting” to her some 700 followers comments that were critical about:
A recommendation was made to terminate Ms Banerji’s employment and Ms Banerji was invited to comment on that recommendation. However, before any further action was taken, Ms Banerji filed a claim with the Court seeking declaratory orders and an interlocutory injunction.
Ms Banerji argued that the Department planned on terminating her employment because of an investigation that was triggered by earlier bullying complaints that she made about her manager. She also submitted that any disciplinary action imposed for these tweets would be “unconscionable” and amount to a breach of the “constitutionally guaranteed freedom of expression”.
The Department denied Ms Banerji’s claims, arguing that the investigation was motivated solely by her political tweets and her outside employment as a psychoanalyst without permission.
The Department informed the Court that at the time Ms Banerji commenced proceedings, the Department had not made any final determination about her future employment and, in line with the undertakings it gave when proceedings commenced, no further steps had been taken in the investigation.
On 9 August 2013, Justice Neville dismissed the application. In summary, he:
In its investigation, the Department relied on the APS Code of Conduct set out in section 13 of the Public Service Act 1999 (Cth), in particular the duties under 13(1), (7) and (11) which provide, respectively, that an employee:
The Department also relied on its Guidelines which say that it is inappropriate for employees to make unofficial public comment that is, or may be perceived to be, harsh or extreme in its criticism of the Government, a Member of Parliament or other political party and their respective policies.
Ms Banerji essentially contended that whatever her comments and when and however they were made, including while employed by the Department, and notwithstanding the terms of her employment contract, the Guidelines and the APS Code of Conduct, her tweets were “protected” by the ”constitutional right / freedom of political communication” and the declarations should therefore be granted.
She maintained that her tweets were a “simple expression of political opinion, made in her own time away from work” and that her “right” to make the comments was recognised by Kirby J in an earlier High Court decision, Australian Broadcasting Corporation v Lenah Game Meats. 
Neville J rejected her views and said that the “unbridled right championed by the Applicant, which she says Kirby J articulated, does not exist”. He said that Ms Banerji had failed to take into account the restrictions on the implied right of political expression made by Kirby J in his decision and which ongoing jurisprudence of the High Court has confirmed. That is, that the right is not “unfettered”. While she remained employed by the Department she was bound by the terms of her employment contract, formally constrained by the APS Code of Conduct and subject to the Guidelines.
The finding that the implied right did not provide a “license... to breach a contract of employment” was not accompanied by any reasoning and it does not appear from the judgment that either of the parties made any contract law arguments before Neville J on this point.
Neville J’s view was that the facts did not warrant the granting of the injunction staying her dismissal. At the time the proceedings commenced, the Department had not made a decision about the fate of Ms Banerji’s employment and in his view it was therefore premature.
Further, Ms Banerji had confirmed that she had tweeted the comments which were critical of the policies of the Government and her Department and she had acknowledged her duties under the APS Code of Conduct, notwithstanding that she said that her actions were constitutionally protected.
At the time of publication, Ms Banerji has not been dismissed and it is possible that she will not be. Nothing precludes Ms Banerji from filing a further application once the Department has reached a final decision (whatever it may be) or from challenging this decision.
While this case concerns the social media activities of a public servant, it serves to illustrate how social media policies and guidelines can intentionally (or in some cases unintentionally) intrude on employees’ freedom to explore and discuss issues concerning their private life and their rights to express political opinions which may be contrary to their employer’s interests.
In Australia, both the public debate and the law in connection with the interaction between social media and privacy are in their relative infancy. Overall, the law is not sufficiently developed to deal with employee concerns about intrusions into their “private” lives; and employer concerns about an employee’s social media activities adversely affecting their business. It is possible that the emerging implied duty of mutual trust and confidence may offer some relief to employees. However, this area of law is still unsettled. On the flip side, the duty of loyalty and fidelity may be of assistance to employers.
Both businesses and employees should be careful to consider the developments in this area of the law.
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